PARTLY DISSENTING OPINION OF JUDGE

V. ZAGREBELSKY

I agree with the majority that the fact that the Public Prosecutor read out in open court extracts of some of the applicant's telephone conversations constitutes a violation of Article 8 of the Convention. However, I regret that I cannot agree with the reasoning that led the majority to find a violation of Article 8 on account of the publication in the press of the bulk of the intercepted conversations after the hearing.

In this case there were two issues to be examined separately.

(a) As for the reading out at a public hearing of a certain number of the applicant's telephone conversations with friends, lawyers, politicians and journalists, I would observe that their interception had been authorised by the Tribunal at the hearings, under Article 295 § 3 of the Code of Criminal Procedure (hereinafter the “CCP”). This Article permits the monitoring of telephone calls to facilitate the search for a defendant who is deliberately evading the court's jurisdiction. The same Article states that various other Articles in the CCP, which regulate ordinary cases of interception during a preliminary investigation, shall be applicable “if possible”. These include Article 268, which regulates the procedure for using the content of intercepted telephone calls. Other Articles of the CCP regulate the type of offence for which monitoring may be authorised, the maximum length of such monitoring, the transcription of recorded conversations under a judicial expertise procedure and supervision by the judge.

The aim of the procedure set out in Article 268 is (a) to protect the privacy of the person whose conversations have been intercepted and the persons who spoke with him or her; (b) to allow parties to the proceedings to adduce in evidence the conversations favourable to their case; (c) to allow the judge to make a selection of the conversations, and to exclude conversations which were not adduced in evidence by the parties, are manifestly irrelevant or whose use is not permitted by law.

The parties' lawyers receive a full copy of the transcripts of the recorded telephone calls and may also request a copy of the original recordings. The law provides that the entire selection procedure is secret. Only conversations ruled admissible by the judge will become known to the public during the trial phase. The recordings are kept by the Public Prosecutor until the final judgment is delivered, but interested persons may ask the judge to order the destruction of recordings that are not relevant to the trial (see Articles 266-271 of the CCP).

In my view, the procedure provided for by Italian law meets the requirements laid down in the Court's case-law. The Court has held: “While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23, and Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299-B, p. 61, § 38). However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation” (see Botta v. Italy , judgment of 24 February 1998, Reports 1998-I, § 33).

Moreover, in the particular field of the interception of telephone calls the Court has held that the following minimum safeguards are necessary in the statute in order to avoid abuses of power: a definition of the categories of people liable to have their telephones tapped by judicial order, the nature of the offences which may give rise to such an order, a limit on the duration of telephone tapping, the procedure for drawing up the summary reports containing intercepted conversations, the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and by the defence and the circumstances in which recordings may or must be erased or the tapes destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court (see the following judgments: Valenzuela Contreras v. Spain , of 30 July 1998, Reports 1998-V, § 46; Kruslin v. France , of 24 April 1990, Series A no. 176-A, § 35; Huvig v. France , of 24 April 1990, Series A no. 176-B, § 34).

In the present case, the Public Prosecutor read out in public some of the applicant's conversations with third persons, asked the Tribunal to accept them and immediately placed the transcripts of all the intercepted conversations at the disposal of the private parties' lawyers. At the next hearing the Tribunal, after hearing the parties to the proceedings, refused to admit the conversations in evidence, partly because the interceptions had continued even after the authorised period, but also because in any event they were not absolutely necessary for deciding the case. In fact, the Prosecutor had asked the judge to admit those conversations in evidence in the final part of the trial, at which stage new evidence is allowed only “if absolutely necessary” (Article 507 of the CCP).

The Tribunal also said that the procedure for selecting which intercepted conversations to admit in evidence had rightly taken place in public. It held that the secret procedure was not possible during the trial phase and that the rule of secrecy was only applicable during the preliminary-investigation phase.

In my opinion, there has been an interference with the applicant's private life and communications and that interference was contrary to domestic law because the Tribunal could, and therefore in law should, have selected the relevant conversations in private with the participation of the parties.

In any case, if doubts were possible as to how the law should be applied during the trial phase, the authorities should have interpreted the law in a way that was compatible with the Convention. The Italian Constitutional Court in its judgment no. 10 of 1993 held that Law no. 848 of 1955, which introduced the Convention into the Italian system, is an “atypical” source of law and thus cannot be abrogated or modified by other ordinary laws. This means that ordinary laws such as the CCP should be interpreted and applied in accordance with the Convention's provisions. One could add that Section 2(1) of Law no. 81 of 1987, which gave the Government the power to prepare and enforce a new code of criminal procedure, states that the provisions of the code must be in accordance with international conventions such as the European Convention on Human Rights and, consequently, the judiciary should interpret and apply those provisions in the light of the Convention.

I would add that if such an interpretation of Italian law were not possible and the Tribunal's ruling was the only possible one under the relevant law, then a violation of Article 8 of the Convention should be found for different reasons: the violation would be the consequence of the non-conformity of Italian law and not of the breach of that law.

For these reasons I conclude that there has been a violation of Article 8.

(b) The majority of the members of the Court considered in § 72 of the judgment: “[T]he Court reaches the conclusion that the divulging of the conversations through the press is not a direct consequence of an act of the Public Prosecutor, but is likely to have been caused either by a malfunction of the registry or by the press obtaining the information from one of the parties to the proceedings or from their lawyers”.

I take this statement as the starting point for my own reasoning.

We can imagine all kinds of conduct on the part of public officers and lawyers, or the people assisting them in their work. We can imagine intentional acts or carelessness on the part of those responsible for keeping the transcript of the conversations. But we do not know who gave one or more journalists a copy of the bulk of the transcripts of the conversations or how they did so. All we know is that the text of all the applicant's conversations was disclosed to the parties immediately after the Prosecutor had read some of them out at the hearing. The disclosure to the parties was part of the procedure of selecting the recordings to be accepted by the judge.

Two arguments lead the majority to find a violation of Article 8 (see § 74): (a) “appropriate safeguards should be available to prevent any such disclosure of a private nature as may be inconsistent with the guarantees in Article 8 of the Convention”; (b) “furthermore, when such disclosure has taken place, the positive obligation inherent in the effective respect of private life implies an obligation to carry out effective inquiries in order to rectify the matter to the extent possible”.

The majority consider that “once the transcripts were deposited under the responsibility of the registry, the authorities failed in their obligation to provide safe custody in order to secure the applicant's right to respect for his private life. Also, the Court observes that it does not appear that in the present case an effective inquiry was carried out in order to discover the circumstances in which the journalists had access to the transcripts of the applicant's conversations and, if necessary, to sanction the persons responsible for the shortcomings which had occurred. In fact, by reason of their failure to start effective investigations into the matter, the Italian authorities were not in a position to fulfil their alternative obligation of providing a plausible explanation as to how the applicant's private communications were released into the public domain.” (see § 75).

As summarised above, Italian law lays down a procedure for the monitoring of telephone calls, in line with the requirements of the State's positive obligations under the Court's case-law. As to the leaking of recordings before, or for reasons other than, their legitimate use in public hearings, the law provides that formal documents relating to criminal proceedings cannot be published, even if they are no longer covered by secrecy, until the appeal judgment has been delivered (Article 114 of the CCP). Public servants and lawyers are liable for breaches of Article 114 and disciplinary sanctions are applicable (Article 115 of the CCP). The Criminal Code lays down penalties for anyone (whether a public servant or a private citizen) responsible for any unlawful disclosure (see Articles 326 and 684 of the Criminal Code).

This statutory machinery fully complies with the requirements identified by the Court in § 74 of the judgment, but one point needs clarifying: contrary to what seems to follow from § 75, I do not think it possible to make the authorities in any way responsible for providing safe custody of the copies of the recordings and transcripts given to the private parties in the proceedings.

In this case – it seems to me, for the first time – the Court imposes on the Contracting States a new positive obligation going beyond what the Court has up till now required in cases concerning the interception of telephone calls by the authorities. The Court's case-law on this subject has been quoted above. Positive procedural obligations are seen by the Court as necessary and inherent in Article 8 in order to avoid abuses of power and thus a violation of this provision. To my knowledge, never before has the Court imposed in cases comparable to this one a procedural obligation on the State, similar to the obligation to conduct an effective investigation, after a violation of Article 8 has occurred. I refer not only to an interference with private life and correspondence through the interception of telephone conversations, but also to the identical interference caused by censoring mail or leaking documents relating to judicial proceedings.

Up till now, only in cases concerning Articles 2 and 3 has the Court imposed on the States a procedural obligation to carry out an effective investigation subsequent to acts leading to a person's death, torture or inhuman or degrading treatment. But such a requirement is clearly and understandably justified by the necessity to protect such a fundamental right as the right to life and to prevent torture or ill-treatment. I do not think that that aim of the Court can easily be expanded so as to cover any possible violation of the Convention, beyond rights of such an importance as to be subject to no derogation even in time of emergency (article15 § 2).

This is my first reason for departing from the majority's conclusion.

But I wish to add a different additional argument, because one could think that the State's duty to carry out effective inquiry in order to establish who was responsible for the leak is an inherent consequence of the legal prohibition on disclosing certain documents. I would agree with that opinion so far as national law is concerned and it is certainly regrettable that the person responsible for the leak has not been identified and punished, but I do not see how it gives rise to a positive duty on the State under Article 8 of the Convention.

As to the position taken by the majority of the Court, I wonder what, in the Court's view, is an effective investigation in this kind of cases.

At the first hearing following the one at which the Public Prosecutor read out some of the intercepted telephone conversations, the presiding judge tried to establish who was responsible for the leak (see § 40 of the judgment). Was it an ineffective investigation because it did not lead anywhere? But at least an attempt has been made by the authorities.

According to the majority, that inquiry was not sufficient to fulfil the State's duty and the respondent State failed to carry out an effective inquiry. If so, the Court in my view should give some indication of what constitutes an effective inquiry in this context. And one has to be realistic about this. The Court should take into account the fact that normally the only effective method is to compel journalists to reveal their sources or to make use of very intrusive procedures against them, such as intercepting their communications or searching their homes or offices. However, this kind of investigation was found to be in violation of the Convention (Article 10) in Roemen and Schmit v. Luxembourg (judgment of 25 February 2003, no. 51772/99) and the protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest (a public interest that could hardly be questioned in this case) (see Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, § 39). Accordingly, Italian law provides for the protection of journalists' sources (see Articles 200 § 3, 201, 256 and 271 § 2 of the CCP). It has to be added that, according to the file, in this case the applicant did not complain or ask the Italian authorities to carry out such an inquiry into the press articles. Nor did he sue anyone for damages.

The Court was unable to find any direct responsibility of the State for the leak. In my view, by putting the onus on Contracting States to conduct an effective inquiry, while at the same time reversing the burden of proof (see § 75 of the judgment), the Court has without sufficient reason adopted the scheme of positive State duties under Articles 2 and 3 of the Convention and imposed on the States an arduous, if not impossible, task to fulfil. In so doing, the judgment concludes by imposing on the State a kind of objective responsibility. And that, in my view, is hardly acceptable within the Convention system.